FILED
NOT FOR PUBLICATION NOV 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50301
Plaintiff - Appellee, D.C. No. 3:10-cr-04739-GT-1
v.
MEMORANDUM*
JUAN JOSE DIAZ-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Submitted November 8, 2012**
Pasadena, California
Before: BRIGHT***, GRABER, and IKUTA, Circuit Judges.
Juan Diaz-Cruz appeals from the sentence imposed for his conviction under
8 U.S.C. § 1326. We vacate his sentence and remand for re-sentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Myron H. Bright, Senior Circuit Judge for the Eighth
Circuit, sitting by designation.
The record does not support Diaz-Cruz’s argument that the district court
failed to appreciate its discretion to deviate from the Sentencing Guidelines for
policy reasons. Although the district court did not explicitly respond to Diaz-
Cruz’s policy argument, it exercised its discretion to impose a below-Guidelines
sentence after noting that it had such discretion and expressing its view that the
Guidelines range was excessively harsh.
We also reject Diaz-Cruz’s argument that the district court improperly
denied him a downward departure for cultural assimilation. United States v.
Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). We do not review a district court’s
decision to deny a downward departure, because the scheme of departures is
“essentially replaced by the requirement that judges impose a ‘reasonable’
sentence.” Id. There is no reason to conclude that the sentence imposed was
substantively unreasonable. In any event, because the district court reasonably
concluded that Diaz-Cruz’s criminal history made him a risk to the public, a
cultural assimilation departure would have been unwarranted. U.S.S.G. § 2L1.2
cmt. n.8 (2010).
The district court erred in determining that Diaz-Cruz was sentenced to 445
days of jail time for his state conviction. Because a California state court may not
sentence a defendant to an aggregate term in jail that exceeds one year without a
2
Johnson waiver, People v. Johnson, 82 Cal. App. 3d 183, 184–85 (Ct. App. 1978);
United States v. Buzo-Zepeda, 609 F.3d 1024, 1025 (9th Cir. 2010), and there is no
evidence of such a waiver in the record, Diaz-Cruz’s sentence of 365 days in jail
after his violation of probation for the state conviction necessarily included his
prior sentence for 80 days in jail. See United States v. Gomez-Leon, 545 F.3d 777,
785 (9th Cir. 2008). Because the district court’s error resulted in an incorrect
criminal history score and an incorrect Guidelines range, the district court might
have arrived at a different sentence had it not made such an error. United States v.
Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (per curiam). Therefore,
we cannot say that the error was harmless. Id.
VACATED and REMANDED.
3